Duty to Consult

Our team of Indigenous Legal Issues lawyers helps Indigenous governments, energy and natural resource industry proponents, municipalities, conservation authorities, and boards and tribunals understand and implement effective consultations that enhance and result in mutually beneficial relationships.

What is the duty to consult in Canada?

In Canada, the Constitution Act, 1982, section 35 recognizes and affirms Aboriginal and Treaty rights of First Nation, Inuit and Métis peoples. In 2004, the Supreme Court of Canada held that section 35 imposes a duty on federal and provincial governments to consult and accommodate Indigenous peoples before issuing permits for projects that impact Indigenous treaty rights and claims. The law about the duty to consult is fundamentally changing the way projects are developed in Canada.

Governments must consult and accommodate Indigenous peoples when governments consider decisions that may affect constitutionally protected Aboriginal or Treaty rights. This often applies to project permits including environmental approvals for mining, forestry, oil and gas extraction, and infrastructure undertakings. While the duty belongs to governments, procedural aspects of consultation are often delegated to project proponents.

In addition, the concepts of consultation and cooperation to obtain free, prior and informed consent are incorporated in the 2007 United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).  In 2021, Canada enacted a legislative framework to ensure that Canadian legislation aligns with UNDRIP. 

Indigenous consultation expertise

Indigenous consultation

Consultation and accommodation are important to successful relationships with Indigenous peoples and their communities. Our indigenous Legal Issues team of lawyers leads effective communication, consultation, and negotiation with Indigenous communities. We promote early engagement with Indigenous communities to build trust and open communications to maintain and grow that trust.

Our lawyers are experienced at:

• assessing the depth of consultation owing
• crafting consultation plans and protocols
• advising about the consultation process
• negotiating and drafting consultation capacity agreements.

Environmental assessments and permit applications

Where Indigenous consultation is required before carrying out environmental assessments and applying for environmental permits and approvals, our lawyers are uniquely positioned to advise. Our lawyers have experience preparing environmental permit applications, retaining and working with technical peer reviewers, reviewing issues relating to regulatory compliance, negotiating with regulators, and appealing decisions.

Learn more about how we can help with environmental resources management.

Archaeology, cultural heritage, and ndigenous knowledge

Our Indigenous Legal Issues lawyers advise about cultural heritage protection, archaeology legislation and standards, and the sharing of Indigenous knowledge in the course of project development. Indigenous knowledge is composed of the cultural knowledge, traditions, and wisdom of Indigenous peoples, and is owned by those peoples. Our lawyers assist with licensing, terms of use agreements, and matters of confidentiality relating to Indigenous knowledge.

Litigation and dispute resolution

Our lawyers have negotiated precedent-setting agreements that facilitate practical solutions involving Indigenous governments, resource developers, municipalities, and the environment. Our lawyers help clients reach agreements that are “win-win” solutions, and avoid the cost and disruption of court proceedings. When recourse to administrative law tribunals and the courts is necessary, our lawyers have a record of experienced and determined advocacy, focused on our clients’ needs and objectives.

We assist Indigenous peoples, industry, and government organizations with litigation and dispute resolution, including:

• land claims & rights litigation
• challenging & appealing government decisions
• public inquiries
• neutral facilitation or mediation
• defence of prosecutions.

Contact our Indigenous legal issues lawyer today

Willms & Shier Environmental Lawyers has offices in Toronto, Ottawa, Calgary, and Yellowknife. Our lawyers are called to the Bar in Alberta, British Columbia, New Brunswick, Nunavut, Northwest Territories, Yukon, and Ontario.

To speak with an Indigenous Legal Issues lawyer, contact us today.